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CMS_LawTax_Negative_28-100.ep UK and EU Health and Safety Calendar September 2020
Introduction This calendar covers some of the key dates for proposed and existing health and safety legislation in the UK and EU (colour-coded accordingly). For a brief explanation of the different types of EU legislation, please refer to the end of this calendar. The content is ordered as follows: 1. New UK and EU Legislation in force 2. Bills before Parliament 2019–2020; and Bills in the 2017–2019 Parliament session 3. The Definitive Guideline on Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Update 4. REACH 5. Current and completed consultations 6. Current and completed campaigns and initiatives This calendar is provided by way of general guidance only and does not constitute legal or professional advice. While we aim for it to be as up-to-date as possible, some recent developments may miss our publication deadline and some dates may change at short notice. The calendar is not intended to cover every policy or legislative initiative, only major health and safety issues. 2 | EU and UK Health and Safety Calendar
1. New UK and EU Legislation in Force
26 March 2020 The Health Protection (Coronavirus, Restrictions)
(England) Regulations 2020 (SI 2020/350)
These Regulations make provision for the purpose of
enabling a number of public health measures to be taken
to reduce the public health risks posed by the spread of
severe acute respiratory syndrome coronavirus 2 (SARS-
CoV-2) in England which causes the disease Covid-19.
These Regulations mandated the closure of certains
venues and businesses in response to the serious and
imminent threat to public health which is posed by the
incidence and spread of severe acute respiratory syndrome
coronavirus 2 (SARS-CoV-2) in England. In accordance with
section 45R of the Public Health (Control of Disease) Act
1984, the Regulations were, by reason of urgency, made
without a draft being laid before Parliament.
25 March 2020
Coronavirus Act 2020
This Act implements the legal basis for the “lockdown”
of citizens and businesses in response to the COVID-19
pandemic and was fast tracked through Parliament in
four sitting days.
The Act has three main purposes:
— to give further powers to the government to slow the
spread of COVID-19;
— to reduce the resourcing and administrative burden on
public bodies;
— to limit the impact of potential staffing shortages on
the delivery of public services.
323 January 2020 European Union (Withdrawal Agreement) Act 2020
The Act implements the UK-EU withdrawal agreement
into UK law, and makes other provision in connection with
the withdrawal agreement. The Act amends the European
Union (Withdrawal) Act 2018 to enable most EU law
to continue to apply in the UK during the transition
period (23.00 on 31 January 2020 until 23.00 on
31 December 2020).
The Act delays the operation of a number of regulations
until the end of the transition period. This includes:
The Health and Safety (Amendment)
(EU Exit) Regulations 2018 (SI 2019/1370)
The Regulations were made on 18 December 2018 and
were due to come into force on 31 January 2020, however
this has been delayed until the 31 December 2020.
The Regulations are intended to ensure that EU-derived
measures relating to health and safety, which have been
incorporated into UK law will continue to be operable
after exit day. The Regulations make necessary
amendments, by removing what will then be redundant
or inappropriate EU references, to various legislation
including: the Control of Major Accident Hazards
Regulations 2015 (SI 2015/483); the Genetically
Modified Organisms (Contained Use) Regulations
2014 (SI 2014/1663); Offshore Installations (Offshore
Safety Directive) (Safety Case etc.) Regulations 2015
(SI 2015/398); and Offshore Installations and Wells
(Design and Construction, etc.) Regulations 1996
(SI 1996/913), reflecting the fact that the UK will
no longer be an EU member state on exit day.
4 | EU and UK Health and Safety Calendar22 May 2019 The Radiation (Emergency Preparedness and Public
Information) Regulations 2019 (SI 2019 No. 703)
The Regulations transpose the emergency preparedness
and response elements of the Euratom Basic Safety
Standards Directive (2013/59/Euratom) in relation to
premises in which work with ionising radiation takes
place by revoking and replacing the Radiation (Emergency
Preparedness and Public Information) Regulations 2001.
The Regulations strengthen Great Britain’s emergency
preparedness and response arrangements for radiological
emergencies and will improve public protection and
reduce adverse consequences in the event of an
emergency. The changes will deliver a consistent
approach to radiation emergency preparedness and
response across the civil, nuclear, defence licensed
and authorised nuclear, and radiological sectors.
29 November 2018 The Building (Amendment) Regulations 2018
(SI 2018 No. 1230)
The amended Regulations give legal effect to the
combustible materials ban announced in the summer.
The ban means combustible materials will not be
permitted on the external walls of new buildings
over 18 metres above ground level containing flats,
new hospitals, residential care premises, dormitories
in boarding schools and student accommodation.
521 April 2018 The Personal Protective Equipment (Enforcement)
Regulations 2018 (SI 2018 No. 390)
These Regulations provide for the enforcement of
Regulation (EU) 2016/425 of the European Parliament
and the Council of March 2016 on personal protective
equipment (“PPE”). It came into force on 21 April in the
UK and Europe, repealing Directive 89/686/EC.
Employers have duties in relation to the provision and use
of PPE. It is equipment that protects employees against
health and safety risks in the workplace, PPE includes items
such as safety helmets, gloves, eye protection, high-vis
clothing, safety footwear, safety harnesses and respiratory
protective equipment. The new Regulations put increased
obligations on producers, importers, suppliers and
distributors to ensure the PPE they supply meets the
necessary standards.
The key changes made by the Regulations are as follows:
— Categorisation has been changed from product related
to risk related
— Categorisation has been changed for certain product
categories, for example, Hearing Protection has now
been moved to category III as ‘harmful noise’ from
category II
— PPE is to be provided with an EC Declaration of
Conformity
— New EU Certificates shall have a five year expiry date
following which renewal is required
6 | EU and UK Health and Safety Calendar21 April 2018 The Gas Appliances (Enforcement) and Miscellaneous
Amendments Regulations 2018 (SI 2018 No. 389)
From 21 April 2018, new gas appliances and fittings used to
burn gaseous fuels must comply with the new Gas Appliance
Regulations if they are to be imported or sold into EU
countries.
The Regulation aims to improve the safety of gas appliances
supplied within the EU and addresses failings not caught by
the Gas Appliances Directive 2009/142/EC.
EU suppliers, manufacturers, distributors and retailers
will be impacted by the new changes brought about by
the Regulations.
1 April 2018
The Pneumoconiosis etc. (Worker’s Compensation)
(Payment of Claims) (Amendment) Regulations 2018
This Regulation came into force on 1 April 2018. This
Regulation makes amendments to The Pneumoconiosis
etc. (Workers’ Compensation) (Payment of Claims)
Regulations 1988.
The effect of this regulation is to increase the amount
of compensation paid under the Pneumoconiosis etc.
(Workers’ Compensation) Act 1979.
71 January 2018 Ionising Radiation Regulations 2017 (IRR17)
The IRR17 came into force on 1 January 2018.
They replaced the existing IRR99 regulations, due to
the implementation of the EU Basic Safety Standards
Directive.
For those working with ionising radiation, the biggest
change relates to how employers submit information
to the HSE.
This relates broadly to industry and specifically to
those that use X-ray devices, radioactive substances
and devices containing such substances, as well as
working with radon gas.
1 January 2018
Regulation (EU) 2017/852 of European Parliament
and of the Council of 17 May 2017 on Mercury
As previously reported in the last calendar,
this Regulation establishes conditions concerning
the appropriate usage and storage of mercury
effective from 1 January 2018. It applies to any
mercury containing mixtures and compounds,
the manufacture, use and trade of any mercury
containing products, restricts the use of dental
amalgam and dictates management of any mercury
waste to ensure optimum protection of human
health and the environment. Its aim is to fill the
gaps in existing EU mercury legislation and to
ratify the Minamata Convention on Mercury.
It was implemented in the UK via the Control
of Mercury (Enforcement) Regulations 2017.
The consultation on the Regulations closed on
21 November 2017.
8 | EU and UK Health and Safety Calendar2. Bills before Parliament 2019–2021
2019–2021 Draft Building Safety Bill published 20 July 2020
Following the Grenfell disaster in June 2017, the
Government is prioritising the urgent reform of the
regulatory system for building.
The Bill will introduce a “new era of accountability”, clearly
identifying where responsibility for managing safety risks
lies throughout the design, construction and occupation
of buildings in scope lies. Central to ensuring the proposed
new regime is effective will be a powerful new Building
Safety Regulator housed within the Health and Safety
Executive. The new Regulator will have responsibility for
implementing and enforcing the more stringent regime for
higher-risk buildings (including high-rise buildings) and will
oversee the safety and performance of all buildings.
Owing to it’s complexity, the Bill has been published for
pre-legislative scrutiny before it is introduced to
Parliament. Once finalised, the Bill will be introduced into
the House of Commons or Lords but the industry is being
encouraged to change behaviours now – Dame Judith
Hackett states that “[the] industry must be in no doubt
that it is not enough to wait for the Bill to become law
before they implement changes; we expect them to start
taking action now”.
2019–2021
New Homes (New Development Standards)
Bill 2019–2021
This proposed Bill requires residential developers to meet
minimum standards of provision for insulation, broadband
connectivity and electric car charging points in new
homes; and for connected purposes. The next stage for
this Bill is the second reading on 12 March 2021.
92019–2021 Anxiety (Environmental Concerns) Bill 2019–2021
Anxiety in Schools (Environmental Concerns)
Bill 2019–2021
Briefly, the Bill aims to place a duty on the Secretary of
State to reduce anxiety about environmental concerns
amongst the general population. This is a Private Members
Bill proposed to tackle climate change fears and “eco-
anxiety”, a recognised mental condition. Sir Christopher
Chope, who proposed the Bill, stated that the two Bills
will look to address “eco anxiety” and define it.
2019–2021
Video Gaming Health and Wellbeing Strategy Bill
2019–2021
First reading of the Video Gaming Health and Wellbeing
Strategy Bill occurred on 20 January 2020. The Bill
provides for the Secretary of State to develop and publish
a video gaming health and safety wellbeing strategy and
provide and develop health and safety advice on video
gaming and the provision of further use of visual
display units.
2019–2020
Environment Bill 2019–2020
A Bill to make provision about targets, plans and policies
for improving the natural environment; for statements
and reports about environmental protection; for the Office
for Environmental Protection; about waste and resource
efficiency; about air quality; for the recall for products that
fail to meet environment standards; about water; about
nature and biodiversity; for conservation covenants; about
the regulation of chemicals; and for connected purposes.
10 | EU and UK Health and Safety CalendarThe Bill was introduced in the House of Commons and
given its First Reading on 30 January 2020.
The Bill was being considered by a Public Bill Committee
but due to COVID-19 restrictions the sittings of the
committee have been suspended until further notice. The
Committee is scheduled to report by 29 September 2020.
2019–2020
Fire Safety Bill 2019–2020
The Home Office introduced this new bill to improve fire
safety in England and Wales in respect of England and
Wales. The Bill was introduced on 19 March 2020.
This Bill will amend the Regulatory Reform (Fire Safety)
Order 2005.
The Bill clarifies that the responsible person or duty-holder
for multi-let, residential buildings must reduce and
manage the fire risk for external structures, including
cladding and windows and are also responsible for
ensuring the fire safety standards applicable to entrance
doors to individual flats leading into common parts.
This clarification will allow enforcement action to be taken
against building owners if they are not compliant.
The Bill is now due to have its report stage and a third
reading on a date to be announced.
11Bills in the 2017–2019 Parliament Session
2017–2019 Fire Safety (Leasehold Properties) Bill 2017–2019
A Bill to require freeholders of certain properties that have
failed fire safety tests to carry out remedial work; to make
provision for sanctions for such freeholders who fail to
carry out such work; to ensure that leaseholders are not
held liable for the costs of such work; to make provision
for a loan scheme to assist freeholders in carrying out such
work; and for connected purposes.
This is a Private Members’ Bill and was introduced to
Parliament on Wednesday 28 November 2018 under the
Ten Minute Rule. The next stage for this Bill will be the
Second Reading which is scheduled to take place on a
date that has not yet been announced.
This Bill failed to complete its passage through Parliament
before the end of the session, meaning the Bill will make
no further progress.
12 | EU and UK Health and Safety Calendar2017–2019 Carbon Monoxide (Detection and Safety)
Bill 2017–2019
According to MP Eddie Hughes, in recent years over 25
people die each year due to carbon monoxide related
incidents, 264 people were hospitalised last year and
4000 people go to A&E each year with symptoms of
carbon monoxide poisoning. Carbon monoxide is
undetectable to the human senses but is easily noticeable
by detectors costing less than GBP 15. The Bill proposes to
make carbon monoxide detectors mandatory in new build
properties and rented proprieties from social housing to
the private rented sector. It further proposes, for the fire
authority to have an explicit duty to promote carbon
monoxide safety, thereby enshrining current best practice
into law.
The Bill was proposed post Grenfell disaster where 80
people tragically lost their lives due to unsatisfactory
housing safety.
It had its first reading on Wednesday 13 September 2017
under the Ten Minute Rule, which allows MP’s to make
their case for a new bill in a speech not exceeding ten
minutes. The second reading of the bill was expected on
Friday 27 April 2018 however, it was withdrawn.
This Bill failed to complete its passage through Parliament
before the end of the session, meaning the Bill will make
no further progress.
132017–2019 Fire Safety Information Bill 2017–2019
Briefly, the Bill aims to establish requirements for fire
safety information of occupants of certain buildings,
including high-rise residential buildings. The purpose of
the Bill is to require the responsible person for all high-rise
residential buildings to hold an annual meeting for all
residents to inform them of the fire risk assessment and to
address all fire safety issues that may be raised. Currently,
the responsible person for any high-rise building is
required to have fire risk assessments for the building
carried out “regularly”.
The Bill was proposed post Grenfell disaster where 80
people tragically lost their lives due to unsatisfactory
housing safety.
The Bill had its first reading in the House of Commons on
20 March 2018.
This Bill failed to complete its passage through Parliament
before the end of the session, meaning the Bill will make
no further progress.
14 | EU and UK Health and Safety Calendar2017–2019 Nuclear Safeguards Bill 2017–2019
Briefly, the Bill aims to establish a domestic nuclear
safeguards regime by:
— Creating a legal framework for the operation of
nuclear safeguard regimes in the United Kingdom
as a replacement for the framework set out from
the United Kingdom’s membership to the European
Atomic Energy Community (Euratom), used previously;
— Amending the Energy Act 2013 by replacing the
current nuclear safeguards purposes of the Office
of Nuclear Regulation;
— Providing the Secretary of State with powers to make
nuclear safeguards regulations, setting out the details
of domestic regimes for nuclear safeguards; and
— Providing the Secretary of State with regulation-
making powers to amend certain legislation, which
reference parts of existing agreements on nuclear
safeguards between the United Kingdom and the
International Atomic Energy Agency.
Following agreement by both the House of Commons
and the House of Lords, the bill received Royal Assent
on 26 June and is now an Act of Parliament.
153. The Definitive Guideline on Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Update It has been four years since the publication of the “Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guidelines” for courts in England and Wales, which came into force on 1 February 2016. The Guidelines apply to all offences sentenced after this date, regardless of the date of the offence itself. It was predicted prior to the coming into force of these Guidelines that they would dramatically increase fines for the relevant offences and this has now been seen coming to fruition. In 2017/18, 517 cases were brought. Numerous fines have been levied against companies in excess of GBP 1m. In its latest enforcement statistics, the HSE published fines decreased from GBP 72.6m in 2017/2018 to GBP 54.5m in 2018/19. In 2017/18, 11,040 notices were issued by enforcing bodies and there were 364 cases prosecuted or referred to the Crown Office and Procurator Fiscal Service in Scotland where a conviction was achieved. In all circumstances, the courts are placing a significant emphasis on ensuring that sentences for health and safety breaches have a real impact upon the charged party. 16 | EU and UK Health and Safety Calendar
Prosecutions of companies setting the tone since October 2019:
Date of
Defendant Fine Charges Narrative Trial/Plea
Conviction
4 October Steel GBP 1.8m Regulation 3 Two employees Guilty plea
2019 manufacturing of the were killed and
Management one seriously
of Health and injured in an
Safety at explosion. The
Work accident occurred
Regulations when a flammable
1999 atmosphere had
developed within
the accumulator
and the flammable
atmosphere was
then ignited by
an electric heater
within the
accumulator.
The HSE
investigation
found that the
company failed
to assess the risks
to its employees
when draining
lubrication oil
from the
accumulator.
177 October Building GBP 1m S2(1) of the An employee Guilty plea
2019 maintenance Health and was carrying out
Safety at maintenance
Work etc. and repair work
Act 1974 on a dry sided
conveyor. Part of
the conveyor ran
under a centering
machine, which
was not isolated
at the time. Part
of the employee’s
body interrupted
the path of the
light beam
between the
sensor’s emitter
and reflector,
which caused the
lifting mast to
activate and
descend. The
lifting mast struck
the employee and
caused fatal
internal injuries.
The HSE
investigation
found that the
company had
failed to ensure
the centering
machine was
isolated prior to
the maintenance
and repair work
being carried out
on the conveyor.
18 | EU and UK Health and Safety Calendar16 October Recycling GBP 1.275m S2(1) of the An employee’s Guilty plea
2019 Health and arm was
Safety at dragged into
Work etc. the in-running
Act 1974 nip between a
conveyor belt and
the powered roller
while he was
attempting to
clear blockages at
the company’s
recycling plant.
The HSE
investigation
found that the
company had
failed to prevent
access to moving
parts on the
conveyor and
the castell key
system had
been bypassed,
allowing the
systems to be
operated when
there was a
person within
the conveyor
enclosure.
1922 October Logistics GBP 2.6m S2 of the A stack of eight Guilty plea
2019 Health and metal containers
Safety at holding car and
Work etc. truck tyres
Act 1974 and toppled over,
Regulation 3 causing the top
of the two containers to
Management fall through the
of Health and roof of a
Safety at portacabin office
Work in which four
Regulations employees were
1999 working. One
employee was
fatally injured, a
second suffered a
fractured skull and
sternum and the
two others
suffered minor
injuries.
The investigation
by the Council
failed to
conclusively
discover the
reason why the
containers fell but
did identify the
company failed to
manage health
and safety at
the site and the
accident was
the product of a
multi-layered
systematic
failure of the
management.
20 | EU and UK Health and Safety Calendar4 December Public services GBP 1.4m S3(1) of the An unsecured Not guilty
2019 Health and street bollard fell plea
Safety at on a six year old
Work etc. child causing
Act 1974 severe head
injuries.
The HSE’s
investigation
found that the
Council had been
informed that the
69kg bollard was
damaged and
unsecured yet
inspections failed
to identify it. The
HSE investigation
also revealed that
inadequate
information,
training and
instruction were
given to the
Council’s
highways
inspection team.
219 January Rail company GBP 1.2m S3(1) of the A 13 year old boy Guilty plea
2020 Health and suffered life
Safety at changing injuries
Work etc. after receiving an
Act 1974 electric shock
when he came
into contact with
the overhead line
equipment at a
freight rail
terminal. The boy,
with a group of
friends, accessed
the terminal via a
broken fence and
came into contact
with the overhead
line when he
climbed on top of
a train. A second
child also suffered
burn injuries.
The Office of
Rail and Road’s
investigation
found that the
company was
aware that
members of
the public
were gaining
unauthorised
access to the site
and had received
a report of youths
climbing on trains
just days before
this incident.
22 | EU and UK Health and Safety Calendar21 May 2020 Property GBP 1.1m S3(1) of the An engineer fell Not guilty
Health and almost three plea
Safety at metres from an
Work etc. internal roof while
Act 1974 inspecting a
sprinkler system,
suffering severe
injuries. The HSE’s
investigation
found that the
principal
contractor, had
failed to take
reasonably
practicable
measures to
prevent a fall from
height.
16 July 2020 Construction GBP 1.2m S3(1) and A mobile elevated Guilty plea
firms (main S2(1) of the working platform
contractor) Health and (MEWP) with two
and Safety at workers inside
GBP 80,000 Work etc. was struck by a
(co-defendant Act 1974 collapsing
company) reinforcement
cage during the
construction of a
road bypass. The
principle
contractor and the
contractor
constructing the
bridge had been
made aware that
the cage was
visibly leaning
prior to the
incident but failed
to take action.
One employee
sustained life
changing injuries,
another sustained
a broken leg.
23The number of company directors and other senior personnel being sentenced for health and safety failings is on the rise. Recent HSE statistics have shown that 23 senior personnel were prosecuted under section 37 of the Act in 2018–2019. Of the 23 convicted senior post holders, 9 received custodial sentences which ranged from suspended sentences to 10 months incarceration. The Guidelines provide judges with a starting point when sentencing companies and individuals for health and safety offences. Since coming into force, at least 23 individuals have received either an immediate or suspended custodial sentence. The Guidelines have lowered the threshold for custodial sentences, meaning that even “low culpability” offences can result in 26 weeks’ imprisonment. 24 | EU and UK Health and Safety Calendar
Prosecutions of individuals setting the tone since October 2019:
Date of
Defendant Sentence Charges Narrative Trial/Plea
Conviction
October Director Fine of S37(1) of the Company and director Guilty plea
2019 GBP 5,000 and Health and prosecuted after unsafe
ordered to pay Safety at demolition work.
costs of Work Etc.
GBP 1,000 Act 1974 The HSE investigation
found no safe system of
work existed. There had
been no asbestos survey
done before the
demolition work began,
which meant any
asbestos contained
materials present,
during the demolition,
would have caused
asbestos fibres to be
released and widely
spread. The company
had not arranged for
gas and electricity
supplies to be properly
disconnected and there
were no measures, such
as fencing, of the site to
prevent access to the
dangerous activity.
25October Director 10 month Sections 7(a) Sole director imprisoned Guilty plea
2019 imprisonment and 33(1)(a) after an employee was
of the Health killed by an excavator.
and Safety at
Work Etc. Work was being carried
Act 1974 out by employees to
build a wall within
an excavation.
An employee was
pinned against the wall
of the excavation pit by
the excavator bucket
and died of blunt force
injuries to his chest and
abdomen.
The HSE investigation
found that the director
failed to undertake a
sufficient assessment of
the risks to those who
had been instructed to
work with him, he
operated a long reach
excavator without
receiving the
appropriate training or
certification, and he
instructed the employee
who died.
November Director 10 months Sections 37 A company director has Guilty plea
2019 imprisonment, and 2(1) of been sentenced after
suspended for the Health exposing employees to
18 months, 20 and Safety at hazardous substances.
hours of unpaid Work Etc. The Court held that
work and Act 1974 over a period of time,
ordered to pay the director had
costs of exposed employees to
GBP 5,428.21 hazardous substances
and deliberately hid
unsafe working
practices from HSE
inspectors.
26 | EU and UK Health and Safety CalendarNovember Director Six months Sections 37 The director of a Guilty plea
2019 imprisonment, and 2(1) of company was found
suspended for the Health guilty and banned from
18 months, and Safety at being a director after
190 hours of Work Etc. knowingly exposing
unpaid work Act 1974 employees to serious
with a further unsafe working
6 rehabilitation conditions. The director
days, and struck allowed the continued
off from being use of a seriously
a company damaged machine on
director for the site. He had also
5 years. been previously
convicted by the HSE
following a fatality at a
previous company of
which he was a director
and then was served
additional enforcement
by the HSE on a visit to
a new company of
which he was a director.
Despite this, he allowed
unsafe conditions to
prevail, presenting a
high risk of persons
being killed or seriously
injured.
November Director 12 month Regulation A company and its Guilty plea
2019 community 4(1) of the director have been
order to carry Work at sentenced after the
out 200 hours Height director’s brother fell
of unpaid work, Regulations from height and
ordered to 2005 suffered fatal injuries.
pay costs of
GBP 15,000 and
a victim
surcharge of
GBP 60
27November Director Fined Regulations 6, Two companies and Guilty plea
2019 GBP 3,000 and 11(a) and 16 their sole director have
ordered to pay of the Control been fined after failing
costs of of Asbestos to manage asbestos
GBP 1,758.41. Regulations safely during
2012 refurbishment of a
converted mill.
December Director Six month Section 37 The director of a Guilty plea
2019 imprisonment, Health and roofing company has
suspended for Safety at been sentenced
12 months, Work Etc. following a HSE
200 hours of Act 1974 inspector finding unsafe
unpaid work, work on a roof. Three
disqualified men were working on a
from being a pitched roof of a
director for two-storey house
3 years, and without any edge
ordered to pay protection. The HSE
GBP 4,000 in investigation found that
costs the company’s failure to
ensure that work at
height was carried out
safely was attributable
to the director.
28 | EU and UK Health and Safety CalendarDecember Director 18 weeks' Section 21 of A company and its Guilty plea
2019 imprisonment, the Health director have been fined
suspended for and Safety at after failure to comply
12 months, Work Etc. with health and safety
180 hours of Act 1974 regulations and an
unpaid work enforcement notice.
and ordered to
pay a victim The HSE carried out a
surcharge of series of inspections at
GBP 115, and a construction site
full costs of following health and
GBP 5,060.69 safety concerns at the
site. During the
inspections, the director
was served with two
Prohibition Notices
and the company was
served with two
Prohibition Notices
and two Improvement
Notices. The
Improvement Notice
was not complied with.
29February Former Eight months Regulation The former director of a Guilty plea
2020 Director imprisonment 6(3) of the construction company
suspended for Work at has received a
two years, 200 Height suspended prison
hours of unpaid Regulations sentence after failing to
community 2005, S22 of comply with Prohibition
work and the Health Notices and for carrying
ordered to pay and Safety at out unsafe work at
costs of Work Act height during roofing
GBP 5,000 1974 work on new build
houses.
The HSE carried out
inspections following
reports of unsafe work
at height on the roofs in
2018. Prohibition and
Improvement Notices
were issues in 2018 for
multiple safety failures.
A further investigation
found that there had
been no compliance
with the Notices issued
in 2018 and that the
Director had failed
“to take suitable and
sufficient measures to
prevent falls from
height during the roof
work”.
30 | EU and UK Health and Safety CalendarMarch 2020 Landlord 15 weeks in Regulations Landlord has been Guilty plea
prison for each 36(3)(a) and sentenced after failing
offence, both 36(2)(a) of the to maintain gas
suspended for Gas Safety appliances and failing to
18 months, and instigate gas safety
in addition to (Installation checks in rental
GBP 1,500 of and Use) properties.
costs Regulations
1998
June 2020 Consultant Fined Section 3(2) A self-employed health Guilty plea
GBP 1,400 of the Health and safety consultant
and Safety at provided inadequate
Work Act and advice to small and
medium businesses on
the management and
control of risk in relation
to hand arm vibration,
work place noise and
the control of
hazardous substances.
314. REACH REACH (Registration, Evaluation, Authorisation and restriction of Chemicals) is the regime for the control and regulation of chemicals in the EU. It is co-ordinated by the European Chemicals Agency (‘ECHA’) but largely enforced in the UK by the HSE, in conjunction with other government agencies. REACH is designed to provide more information on the risks of chemicals and increase confidence in their safe use. Information about hazards and safe use will have to be passed down the supply chain using improved Safety Data Sheets. While the Regulations came into force on 1 June 2007, many of its provisions are being ‘phased-in’ over eleven years. Businesses in a wide range of sectors are affected; it is estimated that there are approximately 30,000 controlled substances being used in the EU. The Regulations require that companies register substances where they are being manufactured or imported (from outside the EU) in quantities exceeding one tonne per year. Registration can be completed electronically using the REACH-IT tool. It involves submitting a ‘dossier’ containing information on the substance, its health and/or environmental risks and the precautions that have been taken to minimise those risks. Besides Registration, REACH introduces requirements of evaluation, authorisation and information exchange. Evaluation allows authorities to require registrants or occasionally downstream users, to provide further information as regards their dossier to examine proposals for testing and check compliance with the registration requirements or conduct substance evaluations if there are suspicions that a substance may pose a risk to human health or the environment. Applications for authorisation are required where affected companies use and place in the market, substances with properties of very high concern. Sharing information about substances imported, manufactured, used in the EU and placed on the market is a fundamental aspect of REACH. The two mechanisms for data sharing are substance information exchange forums (SIEFs) for existing substances and injury for new substances. Risk reduction measures should be developed by manufacturers and/or importers for all known uses of chemicals, including downstream uses. Details of these should be provided to their suppliers encouraging information exchanges. 32 | EU and UK Health and Safety Calendar
REACH – KEY DATES
1 June 2018
‘Phase 3’
From 1 June 2018, the threshold for registration
of substances decreased from 100 tonnes to 1
tonne per annum.
As of June 2018, the registration of phase-in substances was complete.
Companies should continue to constantly monitor additions to the
REACH scope via the ECHA’s website, as the list of harmful substances is
continuously growing. Failure to comply is an offence, which in the UK
can be punishable by unlimited fines. Directors can also be held
personally liable for breaches.
REACH has been subject to a ‘REFIT’ evaluation following the second
review of the Regulation by the European Commission. Under REACH,
the Commission is required to report on the achievement of the
Regulation’s objectives every five years.
Before the implementation of REACH, there were concerns that
chemicals being used and marketed in the European Union were not
being managed or investigated properly. The aim of REACH is to address
these concerns by shifting the burden of the responsibility from the
regulators to those manufacturing and/or importing goods containing
chemicals. The World Summit for Sustainable Development is due to take
place in 2020 and REACH needs to achieve its objectives to ensure it
promotes the EU as a frontrunner in improving the protection of human
health and the environment and promoting alternatives to animal testing.
33The REFIT evaluation has allowed the Commission to present an action plan for a potential overhaul of the Regulation, including simplifying authorisation procedures, assisting SMEs with compliance and strengthening enforcement. The review has taken place in parallel with the fitness check on the most relevant chemicals legislation, excluding REACH. The latest REFIT results were published on 5 March 2018 in a Commission report, alongside a comprehensive evaluation report. The Commission report acknowledges that achievement of REACH objectives has been lagging behind initial expectations, although it notes that a steady improvement has been made. Supply chain costs in relation to registration and communication of information have been higher, up approximately EUR 0.9bn more than the originally anticipated EUR 1.7bn. The findings state these higher costs are justified by the results observed and benefits that are beginning to materialise, but more efficiency is required in dealing with the information passing through the supply chain, particularly for SMEs. The EU executive has said that “the estimated scale of potential benefits for human health and the environment remains in the order of EUR 200bn over 25–30 years”. The report notes the key issues that have impeded the progress of REACH objectives and improvements have been identified. These improvements include extended Safety Data Sheets, evaluation, authorisation and restriction. Issues requiring the most urgent action have been recognised as: 1. non-compliance of registration dossiers; 2. simplification of the authorisation process; 3. ensuring a level playing field with non-EU companies through effective restrictions and enforcement; and 4. clarifying the interface between REACH and other EU legislation, in particular on occupational safety and health (OSH) and waste. 34 | EU and UK Health and Safety Calendar
Implications of Brexit
The HSE has stated that the health and safety responsibilities will not change
when the UK leaves the EU, however this guidance is under review.
REACH etc (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/758)
These Regulations were laid in exercise of legislative powers under
the European Union (Withdrawal) Act 2018 in preparation for Brexit.
The Regulations amend and revoke subordinate legislation and retain
direct EU legislation relating to REACH in order to correct deficiencies in
retained EU law to ensure that the EU legislation will operate effectively
in the domestic context after the UK leaves the EU. The Regulations were
signed on 29 March 2019 and will come into force at the end of the
transition period.
The regulations were amended on 11 April 2019 by the REACH etc.
(Amendment etc.) (EU Exit) (No.2) Regulations 2019 and on 18 July 2019
by the REACH etc. (Amendment etc.) (EU Exit) (No.3) Regulations 2019.
355. Current and Completed Consultations
The following is a selection of recent and ongoing consultations and the expected
timetable for implementation of proposals, where applicable.
Completed CD288 – Consultation Questionnaire on the
amendments to Mines Regulations 2014 (MR2014)
This consultation relates to proposed amendments to the
Mines Regulations 2014 (MR2014) to apply a new binding
limit for respirable crystalline silica (RCS) of 0.1mg/m3 below
ground in coal mines.
MR2014 imposes duties on mine operators to protect
persons at work from the risks to their health arising from
exposure to inhalable and respirable dust and RCS below
ground in coal mines.
The consultation began on 4 November 2019 and ended on
2 December 2019.
Completed CD287 – Carcinogens and Mutagens – Revision of limit
values in EH40/2005 “Workplace Exposure Limits”
The Health and Safety Executive (HSE) consulted on the
implementation of Directive 2017/2398 which amends
Directive 2004/37/EC and introduces 11 new occupational
exposure limits values (OELVS) and amends 2 existing OELVs
for substances to help protect workers from the ill-health
effects of exposure to carcinogens and mutagens in the
workplace.
The consultation focused on the initial limits which come
into effect in January 2020 and set out the HSE’s proposals
for establishing Workplace Exposure Limits for substances
listed in the Directive and sought views on them from
stakeholders, subject to the ongoing negotiations on the
UK’s relationship with the EU.
36 | EU and UK Health and Safety CalendarFollowing consultation, the HSE will make a recommendation
to the Secretary of State on the best way forward.
The consultation began on 15 April 2019 and ended on
7 June 2019.
Radiation (Emergency Preparedness and Public
Complete
Information) Regulations 2019 – Consultation on
proposed Approved Code of Practice
The Office for Nuclear Radiation (ONR), on behalf of the HSE,
consulted on the proposed Approved Code of Practice that
will support duty holder compliance with the new Radiation
(Emergency Preparedness and Public Information Regulations
2019 (REPPIR). The Approved Code of Practice will be
approved by the Board of the HSE and issued as part of a
supporting publication that includes good practice guidance.
REPPIR 2001 has been repealed and replaced as part of
transposing the emergency preparedness and response
requirements of the Basic Safety Standards Directive 2013
made under the Euratom Treaty. REPPIR 2019 is made under
the Health and Safety at Work etc. Act 1974. REPPIR 2001
was supported by Guidance on Regulations but there was no
Approved Code of Practice. The decision to introduce an
Approved Code of Practice to support REPPIR 2019 reflects
changes to the policy intent for nuclear and radiological
emergency planning in Great Britain and associated changes
in the Regulations.
The Approved Code of Practice is statutory guidance and
if a duty holder follows the code, they will be meeting their
statutory duties. A duty holder can still meet their statutory
duties without following the code but will be required to
demonstrate the approach they have taken is in line with the
37standards required by the code. The Approved Code of
Practice is designed to provide users with confidence in
how to comply with REPPIR 2019.
The consultation began on 10 April 2019 and ended on
27 June 2019.
Completed CD286 – Review of the Adventure Activities
Licencing Authority (AALA)
The Health and Safety Executive (HSE) reviewed the
delivery and scope of the AALA on behalf of the
Department for Work and Pensions. The review aimed to
ensure the provision of licensing adventure activities is
delivered in a sensible, proportionate and cost effective
manner.
Adventure Activities Licensing legislation is separate
from and additional to the Health and Safety at Work etc.
Act 1974. However, the criteria in which adventure activity
providers are assessed are the same as that required under
health and safety at work law.
The aim of adventure activities licencing was to provide
assurance to the public. It was also expected that young
people would also enjoy outdoor activities without being
exposed to the risks of death or disabling injury.
The licence scheme was reviewed under the consultation
as it was found to be a cost and burden to businesses and
added little to the health and safety of young people
undertaking adventure activities.
The consultation began on 12 January 2018 and ended on
9 March 2018.
38 | EU and UK Health and Safety CalendarCompleted CD283 – Consultation on implementing new and
revised Workplace Exposure Limited
The Health and Safety Executive (HSE) consulted
on the implementation of new and revised Indicative
Occupational Exposure Limit Values (IOELVs) for thirty-one
chemical substances to help protect workers from the
ill-health effects of exposure to hazardous substances in
the workplace.
The consultative document sets out HSE’s proposals for
establishing workplace exposure limits for the substances
listed in the 4th Indicative Occupational Exposure Limit
Values (IOELVs) Directive 2017/164/EU, in order to
implement it in Great Britain.
The consultation began on 10 November 2017 and ended
on 2 February 2018.
Completed Revised Requirements for Radiological Protection:
Emergency Preparedness and Response
The Euratom/European Union Basic Safety Standards
Directive 2013 (BSSD 2013) establishes updated safety
requirements for the radiological and nuclear sector. It sets
out five work streams namely: emergency preparedness
and response, medical exposure, public exposures,
occupational exposures, and air and space crew.
39The consultation related to implementing the emergency
preparedness elements of the BSSD 2013. It aimed to inform
and seek the views of the public on the government’s
proposals regarding:
— Outcome-focused planning whereby planning efforts are
to focus on places where impacts of an emergency are
most likely to be felt, most severe or where the potential
benefit is greatest;
— Commensurate planning that will aid the civil and defence
nuclear and radiological sectors to prepare for the full
range of emergencies through proportionate and flexible
planning. Where emergencies are more severe or likely,
more detailed plans should be created;
— A graded approach to be implemented ensuring that
the most comprehensive emergency response and
preparedness requirements are focused on the most
hazardous activities;
— Transparency and Consistency in threshold calculations
to ensure that all planning decisions can be justified due
to proportionate planning as well as standardising key
elements of the methodology regarding planning
countermeasures and distances;
— Flexibility in planning and responding to radiological and
nuclear emergencies to facilitate pragmatic and effective
decisions; and
— Continuous Improvement by updating the supporting
Code of Practice that aims to guide duty holders in
fulfilling the requirements of the regulations, to account
for changing good practice without amending the
underlying regulatory regime.
The Consultation closed on 15 November 2017. The deadline
for the Directive to be implemented into UK law was
6 February 2018.
40 | EU and UK Health and Safety Calendar6. Current and Completed Campaigns and
Initiatives
Current
“Work Right” Campaign
The ‘Work Right’ campaign has been implemented to
encourage entities to think about and consider health and
safety and how it applies to their businesses. The campaign
looks to maximise participation and compliance by
combining practical advice with simple actions businesses
can take to manage workplace risk. Especially with the
COVID-19 pandemic, businesses and workplaces have had
to adapt to a new working environment. The Work Right
Campaign’s main call is for employers and entities to share
what the organisation is doing to manage the COVID-19
risk and help businesses to ensure every business is
“COVID-19 secure”.
More information can be found here: www.hse.gov.uk/
campaigns/index.htm
Current
Risk Reduction Through Design Awards
Musculoskeletal Disorders (“MSDs”) are consistently
one of the most common causes of ill-health in Britain’s
workplaces every year, making them a priority issue at HSE.
Working in partnership with the Chartered Institute
of Ergonomics and Human Factor, HSE launched the
“Risk Reduction Through Design Award”, a competition
aimed at encouraging employers to think of innovative
ways to manage the risk of workers developing MSDs,
rather than relying on off-the-shelf manual handling.
Nominations for the 2019 award were submitted by
January 2020. More information can be found here:
campaigns.hse.gov.uk/spotlight/hses-risk-reduction-
through-design-award/
41Current
Go Home Healthy campaign
The HSE continues its ‘Go Home Healthy’ campaign,
providing guidance and information on the HSE’s
three areas of priority: occupational lung disease,
musculoskeletal disorders and work-related stress.
The campaign aims to reduce cases of work-related
ill-health. Employers have been urged to “shine a light”
on hazards in their workplaces, and to do the right thing,
expressed by the hashtag #workright.
The HSE’s microsite, provides further information for both
employees and employers. It includes links to guidance,
case studies, videos and thought leadership.
More information can be found on the HSE’s Go Home
Healthy microsite: www.hse.gov.uk/gohomehealthy/
Current
Healthy Workplaces Manage Dangerous Substances
The European Agency for Safety and Health at Work
(“EU-OSHA”) has launched a campaign to highlight
the risks that workers face from dangerous substances.
The two-year campaign, called ‘Healthy Workplaces
Manage Dangerous Substances’ will promote the best
ways to deal with the risks posed by dangerous substances,
from those found in bakeries, to those substances found on
building sites.
The campaign hopes to dispel the common
misunderstandings around dangerous substances and
raise awareness of the importance of preventing risks from
those substances. It also aims to promote risk assessment
practices by providing information on practical tools and
encouraging good practice. The risk assessment focus
would be on eliminating or substituting dangerous
42 | EU and UK Health and Safety Calendarsubstances and the hierarchy of prevention methods
adhered to by following the correct legislative measures.
The campaign will also aim to heighten awareness of
the risks linked to exposure to carcinogens, target workers
who are at particular risk and increase knowledge of the
legislative framework as well as highlighting policy
developments.
More information can be accessed on the EU Healthy
Workplaces microsite: healthy-workplaces.eu/en/what-
issue
Current
Healthy Work Places for All Ages
Stemming from the EU-OSHA’s Healthy Workplaces
Campaign 2016–2017, the healthy workplaces for all
ages campaign encourages employers to account for
diversity and ensure that elderly workers get the support
they require in the context of an ageing workforce.
Estimates show that by 2030, 30% or more of the
workforce in many European countries will be aged
55–64. As retirement age increases, efforts must be
made to ensure healthy and safe conditions throughout
working life.
The campaign promotes the following:
— Health in later life is affected by working conditions
in earlier life;
— Holistic approach to occupational safety and health
(OSH) management;
— Human resources (HR) policies; and
— Rehabilitation and policies on return to work.
43The aim is to clarify the common misconceptions
regarding the elderly working population. For instance,
key cognitive elements required for work in the work place
do not show any degradation until the age of 70. Further,
the campaign aims to inform employers on the legislation
regarding this issue.
More information can be accessed on the HSE microsite:
healthy-workplaces.eu
Current
Vehicle Load Safety campaign
According to HSE, unsafe loads injure more than
1,200 people a year in the UK and cost businesses
millions in damaged goods.
This campaign focuses on the securing of loads.
It highlights the risks of shifting loads on transport
vehicles, damaged lashings and mistaken reliance of
curtains, which are merely for weather protection.
The HSE micro-site (www.hse.gov.uk/workplacetransport/
loadsafety/index.htm) provides detailed guidance and links
to Department of Transport guidance on specific load
types and vehicles.
44 | EU and UK Health and Safety CalendarCurrent
‘Make the Promise. Come Home Safe’ campaign
With 3 deaths per month, the farming industry has one of
the highest rates of death and serious injury in the UK.
The HSE reports that a farmer is two and a half times
more likely to die in the workplace than in a car accident.
The HSE notes that the following factors are responsible
for this increased risk: farmers are an ageing workforce;
many farmers work alone; and the machinery used is very
powerful.
Seeking to mitigate this risk, this initiative produces health
and safety guidance for farmers, organises free health
and safety awareness days and provides advice through
telephone or farm visits. In addition, it encourages farmers
to make the pledge to return safely for themselves and
their families.
The campaign focuses on encouraging farmers to share
their promise by working with stakeholders to reach new
farmers and act as ambassadors. Farmers are encouraged
to host events such as get-togethers and question answer
sessions.
The initiative has received high profile support from
the National Federation of Young Farmers’ Clubs and
Co-operative Farms. More information can be accessed
on the HSE microsite: www.hse.gov.uk/agriculture/
makethepromise/index.htm.
45Current
Hidden Killer / Beware Asbestos campaign
Asbestos is the single biggest cause of occupational-
related deaths in the UK. Therefore, the HSE’s Beware
Asbestos campaign, launched in 2014, aims to encourage
safe working practices among those workers most at risk,
i.e. tradespeople working on small sites and projects in the
construction and maintenance industries.
In order to raise awareness and encourage safer working
practices, HSE teamed up with TradePoint (the trade-only
outlet of B&Q) to distribute free asbestos safety kits
directly to tradespeople in the UK, which included free
Type 5 safety overalls.
Another key feature of the campaign was the introduction
of a free Beware Asbestos web app designed to help
tradespeople easily identify where they could come into
contact with asbestos and give them tailored help on how
to deal with the risks.
More information can be accessed on the HSE microsite:
www.hse.gov.uk/asbestos/tradesperson.htm.
46 | EU and UK Health and Safety CalendarCurrent
Safe & Sound at Work (do your bit)
The campaign aims to provide a new website and training
for small to medium sized enterprises (SMEs) to help
improve worker involvement through active engagement.
The aim is to illicit essential input from staff through
communication and consultation.
Employees often have the best understanding of risks in
their workplace and thoroughly influence health and
safety through their actions. Involving employees has
shown to lower accident rates and increase productivity,
efficiency and quality in many cases.
The Campaign is underpinned by:
— The Health and Safety (Consultation with Employees)
Regulations 1996; and
— The Safety Representatives and Safety Committees
Regulations 1977;
which both set out employer’s duties to consult their
workforce on health and safety issues.
The following HSE microsite provides more information:
www.hse.gov.uk/involvement/doyourbit/index.htm.
47EU Legislation in Brief Various kinds of EU legislation exists and it may not always be clear to whom they apply and when. The main types are: Directives do not automatically come into force in the UK; they must be implemented by legislation at a national level. Until they are so implemented, they are not directly effective against any individual or company. They may, however, be directly effective against a Government or Government body. Regulations come into force in all EU Member States upon publication. That means that they apply to individuals and companies without legislation on a national level. Decisions are directed towards specific Member States, companies or individuals. They are binding on those to whom they are addressed. Further Information For further information on our health and safety services please contact Jan Burgess on +44 (0)1224 267151 or 07811 362201; or email jan.burgess@cms-cmno.com If your company has a health and safety emergency, you can contact us on: 0333 20 21 010 – Emergency Response Hotline (available 24 hours a day, 7 days a week) Disclaimer – this calendar is provided by way of general guidance only and does not constitute legal or professional advice. While we aim for it to be as up-to-date as possible, some recent developments may miss our publication deadline and some dates may change at short notice. The calendar is not intended to cover every policy or legislative initiative, but only major health and safety issues. 48 | EU and UK Health and Safety Calendar
Health and Safety – what we do
CMS is recognised as a leading firm in the area of Health and Safety.
We provide specialist advice on regulatory compliance, prosecutions,
investigations and corporate governance. We have specialised
knowledge of the offshore and energy sector in particular, which
faces greater challenges and regulation than most. However, our
client base and expertise spans a broad range of sectors, including:
— Construction
— Communications
— Energy
— Global health and safety advice
— Leisure, Hotels & Sports
— Manufacturing
— Renewables
— Transport
Regrettably, accidents at work can be serious and sometimes result
in fatalities. Our clients appreciate the high level of attention and
support we are able to offer during what can be a difficult time for
any organisation. We are able to provide assistance with every aspect
of incident response, including incident investigations, dealing with
witnesses, defending prosecutions and advising senior management
on relations with the Health & Safety Executive.
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